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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 117458
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Arkansas..A elderly WWII widow recently was added to a complaint

Customer Question

Arkansas..A elderly WWII widow recently was added to a complaint 170-days after the original filing, and without any request by the Plaintiffs for an extension of the 120-day deadline to add a defendant..The addition was rq of the ct in the form of a "Motion To Add Defendant-And Amended Complaint"..
No summons was ever issued..thus the court file does not include proof or any reference to a summons or service..The Motion was "served" by Plaintiffs placing a copy of the motion in the court mail box of the attorney of record for the original defendants..
The added defendant did not have a attorney client relationship with this attorney..
This attorney failed to inform the new defendant but did go ahead and "ANSWER" the amended complaint 26-days after he received it (4-days before the deadline for the new defendant to respond, normally)..
At day-203 from the original complaint file date, a mediator arrived unanounced at the new defendants home asking to meet with defendants about the scheduled mediation..
She was stunned, and informed him that she was not a defendant..The mediator (not in a "service" capacity) informed her that indeed she was a defendant..
At day 208 (in a meeting with defendants 1-hr prior to the mediation) the defendants attorney finally and for the first time informed her that she had been added to the lawsuit as a defendant..
To her surprise, he told her that he believed he was her attorney of record all along..
She could not afford to pay legal fees, in any case..So, I agreed to pay her fees..Nearly 7-weeks later, the attorney billed her and I paid her fees..and repeated this for more fees 5-weeks later..In the meantime, this new defendant has been subjected to the process (motions..hearings..sworn testimony etc) even incidentally stating under oath before the judge, during Plaintiffs cross that she had been added to the case "MORE THAN 200-DAYS" later..
The defense attorney instantly leaped to his feet to object and the judge said "I understand, move on."....
Later, like magic, the new defendant is removed from the judge's "ORDER" to appear and show cause ie Plaintiffs claim that defendants were in contempt for refusing to sign an NDA for mediation, although the added defendant not only was present at the failed mediation but also was at the center of defendants filing for contempt as her son (who has business relations with Plaintiffs) was immediately called after the mediation by a plaintiff who threatened her and her neighbors with loss of everything including her social security if she didn't cooperate..
Whew!!! I don't get it..Is this due process.?
Submitted: 2 years ago.
Category: Legal
Customer: replied 2 years ago.
Look..I'm not interested in a quick response..I want quality..Please think this thru..I'm concerned about possible fraud and judicial corruption..Due process is what we bleed for..This woman's husband served in WWII at Okinawa..He earned our rights..
Expert:  Law Educator, Esq. replied 2 years ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
From what you are describing, the court may order amending a complaint outside of the 120 days for service from filing of the complaint. This may be done at the discretion of the court on motion of any party upon proof that full judgment cannot be granted without the inclusion of this indispensable party. That is what they had to argue to get this approved to add her.
Once she was added, then she had to actually be served like any other defendant. That means she had to receive personal service and a summons to answer. The fact this attorney received service and answered for her does not make the service proper, since he had no authority to accept service.
So the proper response this person should have is getting a separate attorney and filing a motion to dismiss for improper service. Furthermore, she could have a suit for malpractice against this attorney for answering without any agreement with her to represent her.
As to why she was excluded from the order to show cause, without reading the documents there is no way to know whether this was a clerical error of the judge when issuing the order or if she was not included because she did not do anything that would be in contempt.
It sounds to me like there could be some conflict with this attorney who is representing this new defendant and also representing the other defendant and for some reason he thinks it is to his other client's benefit she is named in the case. This attorney was bound by the rules of professional conduct to inform her of any conflict and it seems as though from what you are describing that there may be conflicts he did not disclose.
The most important thing from everything you said above that I can see is suggesting you get her a new separate attorney, because it sounds like this other attorney is busy trying to represent his other defendant and not her interests. The new attorney could seek to argue the improper service and lack of any client representation agreement with this other attorney who took service and answered without ever getting the old woman's consent or speaking to her.
As far as misconduct, the potential misconduct here from what you describe is what this defense attorney has done so far and that needs a local attorney to review the files in the case to see what he did and any legal rationale for why he did so. The adding her so late into the case is not improper though if the court was convinced she was necessary as a defendant to get a complete judgment.